Medical Marijuana Patients Breathing Easier Now That They No longer Face The Threat Of Prosecution For Possessing Cannabis Alternatives, After Recent Arizona Supreme Court Decision

Series: Part 1 of 2

The AMMA Cannabis Controversy

It’s been nearly a decade since the state passed the Arizona Medical Marijuana Act (AMMA).

According to the DHS statistics for 2018, the number of active qualified Arizona medical marijuana cardholders totaled 198,017. At year-end, there were an additional 108,819 new applications pending for qualified patient status under the AMMA.

Amidst the success of the program, the state has continued to grapple with how to interpret the law.

The most recent controversy was whether qualified patients had immunity under the AMMA law to possess hashish, resin, or other forms of cannabis besides dried leaves, buds and flowers.

An Arizona Appeals Court ruled last year that hashish, a cannabis resin, was not lawful under the AMMA (Arizona v. Jones, 2018).

Despite the unfavorable ruling, sales of medical marijuana concentrates and extracts continued to increase. flourish. Statistics from Arizona Department of Health Services (ADHS) for 2018 indicated that marijuana “edibles” and “marijuana other” constituted 10, 085 pounds, representing 8 percent of total medical marijuana sales in 2018. This was a .05% increase over 2017 for the “marijuana edibles” and “marijuana other” of total marijuana sales.

Due to the legal uncertainties, qualified patients were left with only one lawful choice to relieve their debilitating systems, which was by smoking the dried leaves, buds and flowers. Choosing to use a cannabis alternative, such as a concentrate or an extract, meant that qualified patients faced the real threat of being arrested and prosecuted for possessing prohibited marijuana products.

Arizona dispensaries and qualified AMMA patients hoped for an appeal and a favorable decision at the Arizona Supreme Court level to allow medical marijuana alternatives.

Then on May 28, 2019, the Arizona Supreme Court released a landmark ruling in the matter. The Court examined the two statutes in controversy pertaining to the definitions of marijuana and cannabis under Arizona criminal law and the AMMA law.

In a unanimous decision, the Arizona Supreme Court ruled that AMMA qualified patients are immune from prosecution for possessing hashish because the statutory definition of “marijuana” includes resin.

This article outlines the Arizona Supreme Court Case; impact of new legislation on Arizona marijuana laws; differences between cannabis products; penalties for violations of marijuana drug laws and AMMA laws; and related criminal defense topics.

Arizona Supreme Court Opinion

The case began when the defendant, a qualified medical marijuana patient, was arrested for possession of a little less than one-and-a-half grams of hashish, and drug paraphernalia (the jar in which the hashish was stored).

The statutes central to the arguments were Arizona’s criminal law which defines “cannabis” under A.R.S. 13-3401 (a) and 2) “marijuana” under A.R.S. 13-3401 (19); and the AMMA statute which defines “marijuana” under A.R.S. 36-2801 (8), and “usable marijuana” under A.R.S. 36-2801 (15).

The defendant argued that possession of hashish was permitted under the AMMA. Specifically, the defendant pointed to Arizona Statutes section 13-3401(4)(a) defining cannabis as “the resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin.” The prosecution argued that under previous case law, AMMA does not displace the criminal law distinction between cannabis and marijuana, and that the AMMA only applies to marijuana. The lower trial court agreed, and with that, found the defendant guilty.

On appeal to the Arizona Supreme Court, the Justices considered the fact that the AMMA was passed as a result of voter initiative, and allows qualifying patients to possess marijuana. The court advised that their first order was to determine if the Arizona legislature’s intended to legalize hashish, concentrates, and extracts based on the statutory language of the AMMA.

The Court explained that the AMMA defines marijuana under A.R.S. 36- 2801 (8), as “all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant”. It noted Arizona case precedent in it’s reasoning that “The word “all,” one of the most comprehensive words in the English language, means exactly that”.

It was the opinion of the court that hashish was considered marijuana under the AMMA because of it’s clear definition, “Marijuana” includes “all parts of the plant.” In so holding, the court rejected the prosecution’s argument that the AMMA does not apply to resins or extracts that are derived from the plant.

The court then noted that the AMMA does not reference the criminal drug law A.R.S. 13-3401, and therefore determined that the AMMA’s reference to marijuana should not be based on the criminal law definition of marijuana.

The Arizona Supreme Court also rejected the prosecution’s argument that the court’s ruling would allow up to two-and-one-half ounces of hashish, which would be much more potent than dried marijuana flowers.

The court took an interesting approach to this argument, finding that the AMMA allows “qualifying patients are allowed two-and-one-half ounces of dried flowers, or mixtures or preparations made from two-and-one-half ounces of dried flowers.” The Arizona Supreme Court held that the definition of marijuana under the AMMA immunizes cannabis resin, which includes hashish, and overturned the defendant’s convictions.

Checklist for Cannabis, Marijuana, and Hemp Laws in Arizona

The Arizona Supreme Court recently handed down an opinion in which it ruled that a qualified medical marijuana patient was immune from prosecution for possessing hashish, a cannabis concentrate (Arizona v. Jones, 2019). This ruling stand as a case precedent which will influence similar cases of this nature in Arizona in the future.

Hashish, resin, cannabis concentrates, and cannabis extracts are only lawful within the guidelines of the Arizona Medical Marijuana Act. They are still prohibited in Arizona for uses outside the scope of the AMMA guidelines, under A.R.S. 13 Chapter 34 Arizona criminal statutes. Marijuana possession, use, transportation, cultivation, distribution, and sales are prohibited under Arizona criminal law A.R.S. 13-3405. Under Arizona criminal statute A.R.S. 13-3401 (4), cannabis means resin, and any part of the plant of genus cannabis; including every compound, manufacture, salt, derivative, mixture, or preparation of such resin or THC.

If a qualified medical marijuana patient violates AMMA guidelines under Arizona Title 36, Chapter 28, the individual may be prosecuted under Arizona criminal law statutes, Title 13, Chapter, 34. Criminal charges for marijuana possession will be brought as a felony All felonies in Arizona expose a person to prison terms, and other harsh penalties.

Qualified AMMA patients do not have immunity from DUI for driving impaired under the influence of medical marijuana. All Arizona drivers, including those who are qualified patients under AMMA, may be prosecuted for DUI under A.R.S. 28- 1381 (1), Arizona’s Drug DUI law if the individual is found to be driving or in actual physical control of a vehicle while impaired to the slightest degree due to marijuana, alcohol, other drugs, or any combination.

Marijuana in any form remains prohibited under Federal Controlled Substances Act and is listed as a scheduled I drug. However, medical cannabis protections remain in place under the Rohrabacher-Blumenauer Amendment, previously known as the Rohrabacher- Farr Amendment of the Federal Appropriations Act. This amendment prohibits the Federal Justice Department from using appropriated funds to enforce the laws under the Federal Controlled Substances Act, in states like Arizona, that have passed their own medical marijuana laws. The amendment remains in effect until September 30, 2019 and will need to be renewed for the protections to be continued. Current legislation for 2019-2020, H.R. 3055, passed the House of Representatives, pends Senate’s review at this time.

In 2018 the Federal Government removed hemp as a Schedule 1 drug under the U.S. Controlled Substances Act. It is now recognized as a commodity under the U.S. Agriculture Improvement Act of 2018. Arizona passed new legislation in 2018, which became effective in the summer of 2019 which also decriminalizes hemp for industrial purposes under A.R.S. 13-3405 (I), (1) & (2) pursuant to Arizona Title 3, Chapter 2, Article 4.1.

What is the difference between cannabis, marijuana, and hemp?

Cannabis or Cannabis Sativa is a species of the Cannabaceae flowering plant family. It is a strong, fast growing plant, first known to be used in Asia over 10,000 years ago. It is a strong, fast growing plant that can grow and flourish in a variety of climates, and weather conditions. Cannabis is considered a cannabinoid. Cannabinoids are chemicals compounds such as THC, and CBD, which are naturally found in cannabis. These cannabinoids impact the receptors of the human body and nervous system which enabling responses such as pain relief. There are two varieties of cannabis which are marijuana and hemp. According to the U.S. Department of Agriculture, marijuana and hemp are identical in appearance, and the main distinguishing factor is quantity of THC in the plants.

Marijuana contains 0.3% of more of THC. It is mainly used for medicinal and recreational purposes due to its natural psychoactive substance, THC. Marijuana refers to the dried leaves, flowers, buds, stems, and resin of the cannabis plant. Marijuana is known by many other names including weed, pot, grass, joint, and Mary Jane.

Hemp contains less than 0.3% of THC. Hemp has been cultivated throughout the world and used for thousands of years for many purposes. These include but are not limited to food, fiber, oil, rope, fabric, canvas, paper, building material, and sailcloth for ships. It’s use continues to expand and fulfill industrial, consumer, and commercial needs. Hemp is also known by other names including fiber, thread, and flax.

What are penalties for conviction of marijuana possession in Arizona?

Any person found to be in possession of marijuana unlawfully, may be found guilty of Arizona’s marijuana criminal laws in violation of Title 13, chapter 34. Currently, marijuana crimes are classified as felonies in Arizona.

All felonies in Arizona expose a person to prison sentencing, fines, a felony conviction and other statutory penalties. Charges of possession for personal use for a first offense will be brought was follows:

Possession of less than two pounds of marijuana is a class 6 felony; Class 6 felony conviction for possession of marijuana range from .33 mitigated to 2 years prison for aggravated sentencing.
Possession of two to four pounds of marijuana is a class 5 felony; Class 5 felony conviction for possession of marijuana range from .5 mitigated to 2.5 years prison for aggravated sentencing.
Possession of more than four pounds is a class 4 felony; Class 4 felony convictions for possession of marijuana range from 1.1 mitigated to 3.7 years prison for aggravated sentencing.

If a person is convicted for possessing more than 2 more pounds of marijuana which exceeds the statutory Threshold Amount in Arizona, they will not be eligible for probation. Fines range from $750.00 or three times the street value of the marijuana found in their possession, whichever is greater not to exceed $150,000.00 for individuals.

Will Marijuana be legal in Arizona in the future?

Currently, adult possession of marijuana for recreational use in Arizona is prohibited. While 12 states in the U.S.A. have legalized recreational marijuana in some fashion, it is still prohibited in Arizona.

Any person using or in possession of marijuana outside of the AMMA guidelines is subject to criminal charges. This is the case, even if it is legal in the state where a person resides and they are visiting or traveling through Arizona.

The most recent attempt to legalize recreational marijuana was with Proposition 205 which was defeated by a narrow margin in 2016, with 51 percent of the voters against it, and 49 percent in favor of passing the initiative.

Advocates for the campaign project that another attempt will be made to put recreational marijuana on the ballot for 2020. The proposal would make it legal for adults age 21, or older to possess up to one ounce of cannabis. It would also allow those persons to produce up to 6 plants in their residence.

Other changes are proposed including a state imposed sales tax of 16 percent on recreational marijuana.

Opponents of proposed initiatives are concerned about public safety, user safety, unintended consequences, and the fact that marijuana is still unlawful under The Federal Controlled Substances Act.

Supporters of a proposed voter initiative for November 2020, maintain that any new proposal will be modified to address flaws in the prior initiative, and it will include provisions that will address public safety issues.

How can an Attorney help me if I get arrested for hashish or other cannabis crimes in Arizona?

If you are a qualified medical marijuana patient, you are subject to the provisions, limitations, and restrictions of the Arizona medical marijuana law.

Despite due diligence mistakes can happen. If you are arrested for non-compliance with AMMA guidelines or any other arizona drug crimes in violation of criminal law, your future and freedom are at stake.

James Novak, of the Law Office of James Novak, PLLC understands that facing criminal charges can be an overwhelming experience with dramatic impacts on a person’s life. It is important that you retain an experienced criminal attorney who will make you and your case a priority.

You will need your own criminal defense attorney to represent you in your criminal charges, and make sure your constitutional rights are protected throughout the criminal justice process. It is important that you retain an experienced criminal defense attorney who can give you the time you deserve and the due diligence necessary to defend your charges.

With over 20 years of experience, James Novak of The Law Office of James Novak, PLLC defends individuals charged with marijuana crimes, marijuana DUI crimes, drug crimes, and other criminal charges. Criminal defense attorney, James Novak is a former Maricopa County Prosecutor with decades of experience defending his clients for marijuana DUI, and other serious criminal charges. If retained, James Novak will be your voice, and protect your rights in the criminal justice system. Attorney, James Novak works vigilantly to get the best possible resolution in your charges. James Novak offers a free initial consultation to individuals who face active marijuana, drug charges, and other criminal offenses in Mesa, Chandler, Phoenix, Scottsdale, Gilbert, and Tempe AZ. To learn more about your defense options and to obtain your free initial consultation call James Novak at (480) 413-1499 or complete the contact form on this website today.

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